Casey v. United States, 12387.

• Citation: 191 F.2d 1
• Decision Date: 03 December 1951
• Docket Number: No. 12387.,12387.
• Parties: CASEY et al. v. UNITED STATES.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

191 F.2d 1 (1951)

CASEY et al. v. UNITED STATES.

No. 12387.

United States Court of Appeals Ninth Circuit.

June 27, 1951.

As Amended on Denial of Rehearing September 14, 1951.

Writ of Certiorari Granted December 3, 1951.

F. M. Reischling, Seattle, Wash., for appellants.

J. Charles Dennis, U. S. Atty., Vaughn Evans, Kenneth J. Selander and John F. Dore, Asst. U. S. Attys., Seattle, Wash., for appellee.

Before HEALY, Circuit Judge, and FEE and SOLOMON, District Judges.

Writ of Certiorari Granted December 3, 1951. See 72 S.Ct. 200.

SOLOMON, District Judge.

Appellants were jointly indicted for violating provisions of the Federal Communications Act, 47 U.S.C.A. § 151 et seq., hereinafter referred to as the "Act." The indictment contained seven counts.

The first three counts charged that the appellants violated § 301 of the Act in that they "did unlawfully, willfully, and knowingly use and operate certain apparatus for the transmission of energy, communications, and signals by radio without a station license" issued by the Federal Communications Commission, hereinafter called the "Commission." In one of such counts, the communication was from Seattle to Portland; in another, from Seattle to a vessel sailing upon navigable waters; and in the third, from one place to another place in the State of Washington but the effects thereof extended beyond the borders of such State.

The second three counts charged that the appellants violated § 318 of the Act, in that they used and operated the apparatus and transmitted the communications and signals by radio without a radio operator's license issued by the Commission. The seventh count charged appellants with a conspiracy. The defendants were convicted on the first six counts and were acquitted on the conspiracy count.

The appeal raises five issues:

1. Admissibility of evidence obtained by an alleged unlawful search and seizure.

2. Admissibility of radio messages between appellants.

3. Correctness of instructions.

4. Sufficiency of the evidence to sustain the verdict.

5. Constitutionality of portions of the Act.

Appellant LaClair filed a timely motion to suppress as evidence certain radio equipment seized from his Packard automobile and to direct that the equipment be returned to him. In his affidavit, he stated that Federal officers "seized and searched affiant's automobile which was parked in a garage separate from and at a distance from said hotel and took from a certain automobile some radio equipment and other articles." This motion was denied. Thereafter, at the trial over appellants' objection, the Government was permitted to introduce in evidence such radio equipment.

The evidence showed that, during the latter part of January, 1949, the Commission in Seattle received information from the Everett, Washington police that an unlicensed radio transmitter had been used as part of a scheme to bilk race track bookies. This scheme operated as follows: In addition to accomplices at various race tracks, three men worked as a team. The first one learned the name of the winning horse by telephone direct from the track. The second, standing near the bookie's place of business, received this information from the first by radio. The third, stationed beside the second entered the bookie's place of business and placed a bet on the winning horse after the race had been run.

Early in February, two amateur radio operators in Oregon reported to the Commission that they had heard voice signals, without call letters, on a frequency of 3540 kilocycles, which is on a portion of the band reserved for code operation. The messages dealt with horse racing and contained numerous statements such as "testing for voice modulation — do you hear me — raise your hand if you hear me." Similar messages on another frequency were reported by a Seattle amateur and by investigators on a Coast Guard cutter in Puget Sound.

During this period, the Commission was making its own investigation. On several successive days, in downtown Seattle, investigators, equipped with mobile direction finding equipment, heard the same voices and similar messages on a frequency of 3540 kilocycles. The direction finder showed that the broadcasts came from different locations and this indicated that the station was being moved almost daily. Each time, however, the voices went off the air before the place, from which the broadcast originated, was discovered. On February 10, when the investigators heard the same voices again, they determined that the broadcast emanated from the Benjamin Franklin Hotel. By the use of instruments, they detected that the signals were coming from room 1217. When they stood outside the door of room 1217, they recognized the voices as being the same that they had heard over the radio. They learned that a number of long distance telephone calls had been placed from this room and that the registered occupants were the three appellants in this case.

The chief investigator left the hotel and went to the United States Court House to obtain a warrant for appellants' arrest. Upon arriving at the Court House, he was informed by the hotel manager that the appellants were about to check out and that two pieces of luggage had been removed from their room to an automobile parked in the Motor Ramp Garage, a public garage located near the hotel. An investigator called the garage and requested an attendant to disable the car so that it could not be moved. This was done. Immediately thereafter, two investigators went to the garage where they were shown a 1948 Packard convertible coupe belonging to appellant LaClair. At their request, the attendant unlocked the car and searched it. He found two bags, one of which contained the radio equipment. These investigators, together with a Seattle police officer whom they had called, remained at the garage.

In the meantime, the chief investigator, having obtained a warrant for the arrest of appellants, returned to the hotel and placed them under arrest. Their room was searched but no equipment was found therein. The chief investigator then went to the garage where he found a friend of appellants, who had attempted to obtain possession of the car without a claim check, talking to the investigators. The chief investigator removed the two bags from the car and...